Should you be labelled a ‘criminal’ if you didn’t know you were breaking the law?

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‘Ignorance of the law is no excuse’ is a well-known phrase, but the implications are perhaps not as well known. The principle seeks to prevent people from getting away with claiming ignorance when they were conscious of the physical actions they were undertaking.

It also means that if the prosecution can prove the ingredients of an offence, it is irrelevant whether or not a person knew that their actions were against the law.

But there are thousands and thousands of criminal offences, many of which you have probably never heard of, so it might seem unfair that you could be convicted of something you didn’t know existed. Even experienced criminal lawyers would be unfamiliar with many criminal offences – so how could someone who hasn’t studied the law hope to know them all?

Mistakes about the law

The law makes it clear that a person is guilty even if their mistake about the law is genuine and completely understandable.

For example, the NSW Supreme Court has ruled that if you are caught going 70km/h in a 60km/h zone, you are guilty of speeding even if you had an honest and reasonable belief that the speed limit was actually 70km/h.

And being mistaken about the law isn’t even an excuse if a government agency told you that the act was legal!

This happened to one Western Australian fisherman, Jeffrey Palmer, who had a commercial fishing licence, and wanted to fish in a particular location for rock lobsters. Uncertain as to whether he was allowed to fish there, Mr Palmer sought clarification from a State Government department who provided materials which led him to believe he could fish at the location. Assuming he was acting within the law, Mr Palmer headed out to fish.

Unfortunately for him, fishery officers then charged with fishing in the area. The penalty for the offence was $5,000, plus an additional fine of ten-times the value of any fish he had caught.

The case went all the way to the High Court who, despite the obvious unfairness to Mr. Palmer, ruled that his mistake was no excuse under the law. The decision was primarily based upon public policy reasons, including the perceived danger of allowing people to avoid liability based upon the information of individuals, even if those individuals are government employees. While the prosecution won the case, the High Court was very critical of the decision to prosecute at all, considering the fact that Palmer had acted honestly and relied upon government misinformation.

Mistake of law vs a mistake of fact:

Unlike a mistake of law, a mistake of fact can constitute a defence for some offences, which means that you won’t be found guilty as long as your mistake was honest and reasonable in all of the circumstances.

A mistake of fact is when:

  • You believe that certain facts to exist (although you are mistaken); and
  • If these facts did exist, your actions would not have constituted an offence.

It can sometimes be difficult to identify whether you made a mistake or fact or law, but it can make all the difference to your case.

Can being unaware of the law ever amount to a defence?

There are rare occasions where ignorance of the law may be an excuse, and one of them is in relation to the gambling game two-up. Two-up is generally illegal except on Anzac Day; but the legislation says that ignorance can in fact be a valid defence (although of course, after reading this, you can no longer claim to be ignorant!). A participant will not be guilty unless it can be proved that they knew, or should have known or suspected, that it was illegal to play the game.

Another exception has to do with property offences. If a person honestly believes that they have a right to property, and they have no dishonest intention, they cannot be found guilty of an offence involving larceny (stealing).

But unfortunately in most cases, ignorance is not bliss when it comes to determining your guilt under the law.

Can being unaware help me any other way?

Even if you are guilty of an offence, the fact that you were unaware that what you were doing was illegal can be used to reduce the seriousness of your actions, and thereby help to lessen the penalty imposed. This is called a ‘mitigating factor’. In some cases, it may even help to persuade the court not to record a criminal conviction against you at all.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

One Comment

  1. alex

    Can a lawyer be sued for professional negligence if he/she didn’t know an aspect of the law and was ignorant of a legal definition at law and you are wrongly convicted based on that ignorance then later exonerated in the Criminal Court of Appeals?

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